Issues concerning libraries and the law - with latitude to discuss any other interesting issues Note: Not legal advice - just a dangerous mix of thoughts and information. Brought to you by Mary Minow, J.D., A.M.L.S. [California, U.S.] and Peter Hirtle, M.A., M.L.S. Follow us on twitter @librarylaw

Can public libraries in Michigan charge for Internet Access?

Hear hear for Michigan libraries. Library of Michigan Library Law Specialist Lance Werner shares his response to this question below:

Hello, Lance,

You may remember my inquiry last year on library fees, stemming primarily from a proposed fee on public Internet usage. You replied in part:

The imposition of fees for computer usage is impermissible as a matter of public policy. The reason for this is that residents in the jurisdictional and contractual boundaries of the library's service area have already paid for library services. The imposition of a fee would in effect constitute a double charge and could be viewed as an unauthorized tax. All governmental entities and subdivisions of state and local government can only act as authorized by law. Since the library and library board is a subdivision of local government, statutory authorization is a prerequisite to action. There is no statutory authorization to impose a fee for use of library materials and services on those that have already paid for library services and materials. Based on these considerations the library would be well advised not to impose a fee for computer usage.

This fee was one of several scheduled for implementation beginning in January. I shared your reply with City administration, and the question raised was how such a fee would differ from charges paid for video or DVD rental, photocopies, or anything else. There were other implications specific to the public Internet fee; consdquently that fee was shelved for further consideration prior to the start of the City's FY 2006-07, which begins in July. We did begin assessing a minimal charge for special youth programming ($1.00 per resident and $2.00 per non resident) in January. City administration felt that your comments prohibited the charging of user fees for any aspect of library service.

I appreciate that you can't offer me a legal opinion, and that decisions for the ********* Public Library need to be made in consultation with our City Attorney. As we discussed at the time though, I'd be interested in your thoughts especially with regard to how a proposed Internet fee would differ from other fees that the library does and might charge.

Thank you.---------

Click continuation for Lance's response:

RESPONSE: Hello ****, I hope all is well. Previously, you asked about any legal authority that makes it impermissible to charge residents fees for library services. You now ask if I could distinguish between different types of proposed fees.

While I am unable to give you legal advice or act as your library's legal counsel in any capacity, I can furnish information that may shed some light on your question.

Before discussing the issue of how to distinguish different types of fees it is first useful to consider how Michigan law governs resident fees for library services.

The imposition of fees for library services has been addressed numerous times under Michigan law. As it happens there is a great deal of legal authority against the imposition of resident fees for library services.

Michigan jurisprudence concerning the establishment and funding of free public libraries predates statehood. Since the beginning of the State, Michigan laws have not only authorized the creation of public libraries but have also authorized state subsidization of free public library services for Michigan residents. Article X, Section 4 of the Michigan Constitution of 1835 states:

As soon as the circumstances of the state will permit, the legislature shall provide for the establishment of Libraries, one at least in each township*the clear proceeds of all fines assessed in the several counties for any breach of the penal laws, shall be exclusively applied for the support of said libraries.

The above language was also included in the Constitution of 1850, in Article XIII, Section 12.

The intent of the Legislature that there shall be free library service for the people is evidenced by language found in the City, Village and Township Libraries Act, 1877 PA 164, MCL 397.201 et seq. The title of this law provides that it is an act to:

*authorize cities, incorporated villages, and townships to establish and maintain, or contract for the use of, free public libraries and reading rooms*

Moreover, section 6 of 1877 PA 164, MCL 397.206, states:

Every library and reading room established under this act shall be forever free to the use of the inhabitants where located...

In addition, section 13 of 1877 PA 164, MCL 397.213, provides:

Notwithstanding a contrary city, village, or township charter provision, a township, village, or city adjacent to a township, village, or city that supports a free public circulating library and reading room under this act may contract for the use of library services with that adjacent township, village, or city.

This section provides that even if a library is established via city charter, it still must maintain its status as a free public circulating library.

These sections are still good law today.

Over the years the language concerning the provision and funding of library services for Michigan residents has changed somewhat from what was articulated the 1835 Constitution; however, the original intent has endured.

The current constitutional underpinnings for library services is currently found in Article VIII, Section 9 of the 1963 Constitution, which states in relevant part:

The legislature shall provide by law for the establishment and support of public libraries which shall be available to all residents of the state under regulations adopted by the governing bodies thereof.

As with every Michigan constitution and law since 1835, contemporary law provides mechanisms not only for the creation of public libraries, but also for the State subsidization of free public library services.

The Legislature enacted specific laws to give effect to the "support"language of Article VIII, Section 9 of the Michigan Constitution of 1963. These laws include the Distribution of Penal Fines to Public Libraries Act (Penal Fines Act), 1964 PA 59, MCL 397.31 et seq., and the State Aid to Public Libraries Act (State Aid Act), 1977 PA 89, MCL 397.551 et seq.

Section 1 of the Penal Fines Act, MCL 397.31, indicates:

"Public library" means a library, the whole interests of which belong to the general public, lawfully established for free public purposes*

Section 6 of the Penal Fines Act, MCL 397.36, provides:

The penal fine moneys when received by the proper authorities shall be applied exclusively to the support of public libraries and to no other purpose*

Legislative intent demonstrating a preference for "free" public libraries is also evidenced by section 2 of the State Aid Act, MCL 397.552, which states:

"Public library" means a library that is lawfully established for free public purposes by 1 or more counties, cities, townships, villages, school districts, or other local governments or a combination thereof, or by a public or local act, the entire interests of which belong to the general public.

Conversely, on the matter of non-residents, of note is section 11a of the State Aid Act, MCL 397.561a, which indicates:

A library may charge nonresident borrowing fees to a person residing outside of the library's service area...

The relationship between library services and fees was recently considered by the Legislature in 2005, during passage of Public Act 60 of 2005. During legislative deliberations, a decision was made to omit a provision, the so-called section 12(g), which may have limited access to library services.

Based on these laws and the history of public libraries in Michigan, it is clear that people residing within a public library's jurisdictional service area (residents) and those residing in contractual service area (persons served by library service contract) are entitled to free library services.

It would therefore be impermissible in Michigan for free public libraries to impose a fee for library services both on residents and on those persons residing in any contractual service areas served by the library.

On a related note, it is useful to highlight that the Michigan Attorney General has addressed the issue of non-resident fees for library services.

Attorney General Frank J. Kelley discussed this issue in two opinions.

***In particular, the framers intended that local libraries may adopt reasonable rules regarding accessibility and availability. . . in cases where the applicant for a book or periodical was not an immediate resident of the locality.***

Attorney General Kelley had occasion to revisit this issue on October 17, 1983, in opinion no. 6188, wherein he posited:

The governing body of a public library may, pursuant to Const 1963, art 8, Sec. 9, adopt reasonably regulations imposing fees for borrowing privileges upon nonresident users who are not entitled to the services of the library pursuant to a contract entered into with the governmental unit of the borrower's residence, provided that fees imposed reasonably relate to the costs incurred by the library in making borrowing privileges available to such nonresidents and provided that the fees are not disproportionate to the cost, direct or indirect, of issuing a library card, facilitating the return of loaned books, and the attendant cost of administration.

and also:

It is demonstrable that local library boards are not expressly authorized by Const 1963, art 8, Sec. 9 to promulgate rules imposing fees for the general support of public libraries.

The opinions of Attorney General Kelley show that while it is impermissible to impose a fee for basic library services on either residents or on people residing within a contractual service area, it is legal to require a fee for library use from non-residents. Also, any non-resident fee required by a library for the provision of library service must bear some relation to the cost of providing the requested service.

With respect to your query as to how I suggest you distinguish between fees, I have the following comments. This question is an offshoot of another question, which is what constitutes library service. Of course library service is interpreted in the broadest sense and includes the traditional notion that library service means the circulation of materials. It is also true that library service has been interpreted historically to mean all service rather than ala carte offerings.

To discuss what constitutes library service, it is also necessary to determine what "materials" are. Materials include traditional library offerings such as books and the like. However, a strong case can be made that materials also include more modern offerings such as cassette tapes, CD's, videocassettes, DVD's, and possibly software. It can be further posited that among Michigan's public libraries and possibly the public, which they serve, the notion of materials includes all library informational offerings, including the Internet.

The determination of what constitutes library service at your library is something that I cannot decide. It is a decision that must be made by the library's governing body in accordance with the applicable laws.

Additionally, it is important to consider the implication of imposing fees by government. Quite often a fee is considered a tax by another name when imposed or required by government. Limitations on the power to tax by units of local government is provided by Article IX, Section 31 of the 1963 Constitution, which states:

Units of Local Government are hereby prohibited from levying any tax not authorized by law or charter*without the approval of a majority of the qualified electors of that unit of Local Government voting thereon.

Hence, a library board may not be able to adopt a policy to charge residents a fee for library services in the absence of express legal authority to do so. Hanselman v Kileen, 419 Mich 168; 351 NW2d 544 (1984).

Even if a charter provision were adopted authorizing a fee to be imposed on residents for library service, it would be contrary to Michigan law requiring free library service. Finally, it is long held within Michigan jurisprudence that it is not possible to amend law through implication. An amendment requires change to any other ancillary or related law affected by the amendment.

Again, the Library of Michigan, Michigan Department of History, Arts and Libraries lacks authority to give legal advice to any person or agency. The Library of Michigan simply furnishes informational and comment services.

I have the highest respect for Lance Werner and his work with Michigan libraries. His writing is cogent and persuasive. It is not a clear statment of current Michigan law, however. It would say that it would make an excellent brief in support of the position that libraries cannot charge for internet access. I would respectfully disagree that the constitutional provision giving governing bodies the authority to adopt reasonable regulations is an absolute bar to charging for internet service and that the cited provision would not give trustees the right to impose a reasonable charge for such service. The internet, for example, did not exist at the time the constitutional provision was adopted in 1963. A cogent "original intent" argument could easily be made that the internet could not have been within the intent of the words of that constitutional provision. Given the current Michigan Supreme Court, such an argument could also prevail.

Beyond that, Mr. Werner fails to really distinguish between charges that a library can impose and those that a library can't impose. Many Michigan libraries charge for videos, CDs and DVDs. Are those charges clearly illegal, too?

Let me be clear. Lance may be correct. I am somewhat disappointed that he presents an advocacy position as settled law, though.

If a more authoritative opinion on the question is needed, one could be requested by the Library of Michigan from the Attorney General. That opinion would be largely binding on State agencies and somewhat persuasive in Michigan courts.

In the absence of something more authoritative, local libraries should rely - as the posting notes - on their own attorney.